KRUZIE ET AL v. SANDERS ET AL

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District Court of Appeal, Fourth District, California.

KRUZIE ET AL. v. SANDERS ET AL.

Civ. 3053.

Decided: April 15, 1943

Thomas F. Lopez, of Fresno, for appellants. Hoge, Pelton & Gunther, of San Francisco, Chester O. Hansen, of Fresno, and A. Dal Thomson, of San Francisco, for respondents.

This is an appeal from a judgment entered after a motion for nonsuit had been granted.

Plaintiffs are husband and wife, as are defendants. They lived in the city of Coalinga and were friendly neighbors. Frank Sanders was the owner of the automobile involved in the accident out of which this case grew. It was being driven by his wife with his consent.

Defendants seek to support the judgment in their favor on two grounds: First, that Mrs. Kruzie was a guest in the automobile at the time of the accident and that if any carelessness was shown on the part of Mrs. Sanders it was only ordinary negligence so that no recovery could be had under the guest statute (Sec. 403, Vehicle Code, St.1935, p. 154); and, second, if Mrs. Kruzie was found to be a passenger there was no evidence of negligence on the part of Mrs. Sanders that would support a judgment in favor of plaintiffs.

It is thoroughly settled in this state that the trial court may grant a nonsuit only when, disregarding all conflicts in the evidence, and giving the plaintiffs' evidence all of the weight to which it is entitled, and drawing every reasonable inference from the evidence which may fairly support the case of plaintiffs, the result reached is a lack of any substantial evidence which would support a verdict in their favor. Berger v. Lane, 190 Cal. 443, 213 P. 45; Hall v. Barber Door Co., 218 Cal. 412, 23 P.2d 279; Engstrom v. Auburn Automobile Sales Corp., 11 Cal.2d 64, 77 P.2d 1059. For this reason we will summarize only the evidence favorable to plaintiffs.

The following evidence bears on the status of Mrs. Kruzie in the automobile at the time of the accident:

“Q. Just tell us what she said? A. She asked me to go to Fresno with her and do her Christmas shopping, and I told her I would if I could get away. I was working at the time and it was uncertain as to whether I could go or not. And she wanted to go on Wednesday, so I called her on Wednesday and told her that I couldn't go because that was my lodge night, and I had to go to lodge, and she said that is all right. ‘I have a party on Thursday, so we will go Friday.’ And Friday I thought that she had gone. I didn't see her until Sunday * * *.

“Q. Go ahead. A. There was quite a lot of conversation about me getting off and coming over to Fresno with her. She said, ‘I have to go over there. There is the setting I have to take over and put in a mounting. I want you to help me with it.’

“Q. Will you go right ahead? A. Well, I told her that I didn't see how I could get off. I tried––and I had refused to go the other times, and I just didn't want to come over to Fresno, and she said ‘Well, I have a lot of other things I want you to do, too, Margery, and I want you to come with me.’ * * *

“Q. Was there anything else said there by Mrs. Sanders or you about this trip that you recall? A. I recall of asking her why we couldn't postpone it and go another day, and she said, ‘No, Margery, I have to go tomorrow. If I don't take this stone over, I can't get my mounting tomorrow, and I want you over there to help me pick out that mounting.’

“Q. Now you refer to some other shopping. I interrupted you once. Was there anything said about what the other shopping was? A. Yes. I had three or four girls employed in the restaurant, and I knew their sizes and different things, and she wanted me to help her with the buying of Christmas presents for them. * * *

“Q. You weren't doing any shopping? A. No, I wasn't. My Christmas shopping was all bought.

“Q. Already bought? A. Bought.

“Q. And the only purpose you came over was to advise Mrs. Sanders on Christmas presents that she was buying for people? A. I came over to assist her in any way I could.

“Q. Yes. And you didn't have any mission that brought you to Fresno at all? A. No.”

The present guest statute was first carefully considered in Crawford v. Foster, 110 Cal.App. 81, 293 P. 841, 842, where it was said: “We think the meaning of the language used is that a guest is one who is invited, either directly or by implication, to enjoy the hospitality of a driver of a car; who accepts such hospitality; and who takes a ride either for his own pleasure or on his own business, without making any return to or conferring any benefit upon the driver of the car, other than the mere pleasure of his company. * * *”

The foregoing definition is still approved by the courts of California and has been applied in many cases. Whether a person riding with the driver of the car is a guest as defined in the statute, or a passenger depends on the factual situation of each case. The conclusion to be drawn from the many cases dealing with the subject, in which the rider has been held to be a passenger and not a guest, may be stated, as applicable to the facts, here as follows: Where the trip is not solely for the pleasure of the parties and is not an exchange of social amenities, but is on the business of the driver in the prosecution of which the rider renders or is to render substantial assistance to the driver, a consideration flows from the rider to the driver which amounts to compensation for the ride and makes the rider a passenger and not a guest. See, Walker v. Adamson, 9 Cal.2d 287, 70 P.2d 914; Druzanich v. Criley, 19 Cal.2d 439, 122 P.2d 53; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160; Boyson v. Porter, 10 Cal.App.2d 431, 52 P.2d 582; Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546; Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140; Carey v. City of Oakland, 44 Cal.App.2d 503, 112 P.2d 714; Bummer v. Liberty Laundry Co., 48 Cal.App.2d 648, 120 P.2d 672; Whittemore v. Lockheed Aircraft Corp., 51 Cal.App.2d 605, 125 P.2d 531.

Here we find that Mrs. Kruzie had no business of her own to transact in Fresno; that making the trip required readjustment in employment in the place where she worked; that she was reluctant to leave her work but finally yielded to the repeated and insistent urging of Mrs. Sanders and made the trip solely for the purpose of aiding Mrs. Sanders. It is evident that Mrs. Sanders regarded the presence of Mrs. Kruzie in Fresno as important to her,––so important that she postponed the trip until Mrs. Kruzie could go; that she wanted the advice and assistance of Mrs. Kruzie in selecting a setting for a ring which was to be a Christmas gift, as well as special information which Mrs. Kruzie possessed concerning other persons; that Mrs. Sanders desired to use this information in selecting presents for them.

This evidence presented a question of fact as to a substantial benefit to be bestowed on Mrs. Sanders by Mrs. Kruzie that should not have been decided on a motion for nonsuit as the reasonable inference might have been drawn from it that such benefit made Mrs. Kruzie a passenger and not a guest.

Carey v. City of Oakland, supra [44 Cal.App.2d 503, 112 P.2d 717], is a case in which the plaintiff rode in an ambulance to render assistance in caring for an injured passenger. The court held that this was compensation for the ride that made her a passenger and not a guest. The court summarized some of the other cases to the same effect as follows: “Some of the California cases which may be cited as illustrative of the application of the principle that a person is not a guest within the meaning of said law who accepts a ride with the understanding that he is to perform some service beneficial to the driver or his principal, are Lerma v. Flores, 16 Cal.App.2d 128, 60 P.2d 546, wherein the plaintiff accepted a ride for the purpose of assisting and guiding the driver along the highway, and advising him, at the latter's request, as to the condition of the roads over which the driver was about to travel; Haney v. Takakura, 2 Cal.App.2d 1, 37 P.2d 170, 38 P.2d 160, wherein the plaintiff accompanied the driver to assist in marketing the latter's produce; and Yates v. J. H. Krumlinde & Co., 22 Cal.App.2d 387, 71 P.2d 298, in which the plaintiff claimed that he was taken along by the driver for the purpose of helping him unload the truck on which he rode.”

That the compensation to be given for the ride was small and that the services were not actually rendered because the accident rendered personal performance impossible cannot affect the issue. In Lerma v. Flores, supra [[[[16 Cal.App.2d 128, 60 P.2d 547], it was said: “The consideration may be any benefit conferred or any detriment suffered (Civ.Code, § 1605), and the law will not enter into an inquiry as to its adequacy. Whelan v. Swain, 132 Cal. 389, 64 P. 560; Rusconi v. California Fruit Exchange, 100 Cal.App. 750, 754, 281 P. 84; Seth v. Lew Hing, 125 Cal.App. 729, 14 P.2d 537, 15 P.2d 190; Marsh v. Lott, 8 Cal.App. 384, 389, 97 P. 163; Williston, Contracts (2d Ed.), § 115. Moreover where the consideration agreed has been accepted, the acceptance constitutes a waiver of any claim of inadequacy (Nicholson v. Tarpey, 70 Cal. 608, 12 P. 778); and the rule applies to the acceptance of services bargained for even though valueless in fact. Peters v. Binnard, 219 Cal. 141, 25 P.2d 834.”

If Mrs. Kruzie was a passenger and not a guest at the time of the accident, defendants would be liable for damages resulting from the negligence of Mrs. Sanders in operating the automobile.

The accident happened on December 16, 1940, on Kearney Boulevard, a short distance west of the City of Fresno. Kearney Boulevard is an oiled road with a high crowning center. It was wet and slippery at the time of the accident.

Mrs. Sanders was driving east on Kearney Boulevard at a speed of between 55 and 60 miles an hour. Suddenly the automobile skidded off the road and into a palm tree along its side, injuring Mrs. Kruzie.

As was said in Druzanich v. Criley, supra [19 Cal.2d 439, 122 P.2d 56]: “Under the circumstances here presented, viz., the instrumentality being in the exclusive control of said respondent; the accident being such that in the ordinary course of things it would not have happened if the respondent driver had used proper care; and the injury having occurred without voluntary action on the part of appellant, the res ipsa loquitur doctrine must be held to have been applicable.”

While the doctrine of res ipsa loquitur does not give a plaintiff an absolute right of recovery, it raises an inference of negligence which must be met by the adverse party. In a case such as this, where the res ipsa loquitur rule is applicable, an order granting a nonsuit is error where the injured plaintiff is a passenger and not a guest.

As there is evidence in the record and reasonable inferences to be drawn from it that would support a verdict for plaintiffs, the trial court erred in granting the motion for nonsuit.

The judgment is reversed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.